177 A.D. 551 | N.Y. App. Div. | 1917
Present — Clarke, P. J., Laughlin, Scott, Davis and Shearn, JJ.
The following is the opinion delivered at Special Term:
Motion for judgment on the pleadings. The action is brought upon an undertaking executed by the defendant. It is alleged in the complaint that in May, 1914, the plaintiff instituted an action against Alberto de Arteaga and Eugene. Richards to recover the possession of certain personal property; that the undertaking sued upon herein was given in that action for the purpose of reclaiming the goods in question from the sheriff ; that the plaintiff duly recovered judgment against the' defendants therein for the sum of $1,191; that execution on said judgment was issued and returned unsatisfied, etc. The defendant has interposed a separate defense and counterclaim which, in substance, alleges that the judgment against de Arteaga and Richards was obtained through the perjury of the plaintiff, and that had he testified truthfully the liability of the defendant upon its bond would not have arisen, etc. An injunction is sought restraining the plaintiff from proceeding herein or taking any action by virtue of the judgment obtained. Plaintiff demurs on the ground that the facts stated are not sufficient to constitute a defense or counterclaim. It is doubtless true that a judgment can be set aside for fraud by an action brought for that purpose, but it is the settled law of this State that the fraud for which a judgment can be impeached must be in some matter other than the issue in controversy in the